Cohen v. Schneider

Haul, J. It does not appear from the record upon what [509] ground the defendants’ motion for a nonsuit was granted. From the hriefs of counsel we assume that the ground of the motion for a nonsuit was that the plaintiff had not made out a prima facie case, since it appeared from the evidence that the goods in question, which prior to the execution of the bill of sale (Exhibit A) had been in the possession of Tovorovsky as his own property, were suffered to remain hi his possession after the execution of the contracts A and B, and that Tovorovsky did not give the key to the plaintiff and surrender the goods to him, until after the attachment had been made by the defendants. A careful examination of the evidence reported to us shows that the plaintiff should not have been nonsuited upon that ground. The evidence contained in the record does not clearly show when, with reference to the attachment, the property was so surrendered to the plaintiff by Tovorovsky. It is true that the plaintiff himself testifies that it was after the attachment, but Tovorovsky swears that it was before the attachment. It was for the jury to decide under these circumstances what the fact was. Counsel for the plaintiff should have been permitted to claim to the jury that the plaintiff was mistaken upon that point and that the testimony of Tovorovsky should be believed. If the nonsuit was not granted upon the ground we have suggested, but because the court was of the opinion that the evidence showed that the transactions between the plaintiff and Tovorovsky were in fact fraudulent, it should be set aside. Though the court may have had sufficient reason to be satisfied that the testimony of the plaintiff and Tovorovsky was false or wholly unreliable, and that they were engaged in a scheme to defraud the creditors of Tovorovsky and to prevent the defendant Schneider from collecting his just claim, the case should nevertheless have been submitted to the jury. It was the province of the jury and not of the court to weigh the testimony of witnesses, and to pass upon the question whether the transaction between the plaintiff and Tovorovsky was in fact honest or fraudulent. General Statutes, § 1101; Cook v. Morris, 66 Conn. 196. [510] It is suggested that since the contract of conditional sale (Exhibit B) conformed to the requirements of the Act of 1895 concerning conditional sales (Public Acts of 1895, Chap. 212) and was duly recorded, the plaintiff, under that contract, had a good title against the attaching creditors of Tovorovsky, although the plaintiff did not receive the key and possession of the goods before the attachment. This claim cannot be upheld. The purpose of the Act of 1895 was not to enable vendors to make conditional sales which they could not have made before the passage of the Act, but to protect creditors and purchasers from the evils which had before resulted from the existence of lawful and valid conditional sales, but of which the public had no notice. In re Wilcox and Howe Co., ante, p. 220. Conditional sales made in good faith, and which provided that the title to. property should remain hi the vendor until payment and that possession should go with the sale, were good, against creditors of the vendee before the Act of 1895; but the reasoning of our courts, in sustaining such conditional sales, has been that the vendee in such contracts did not come into the possession of goods which he had owned before, and that hi that respect they differed from the cases in which property owned by the possessor had been sold by him and possession retained by the vendor. Lewis v. McCabe, 49 Conn. 141. The effect of the Act of 1895 was to render conditional sales which should thereafter be made and which should not be made, acknowledged and recorded in conformity with the provisions of the Act, absolute sales as to creditors and bona fide purchasers of the vendee. From the evidence hi the case at bar it appears that Tovorovsky was the owner and possessor of the property in question, up to the day of the execution of the contracts A and B. On the 24th of June he executed a bill of sale of the goods to the plaintiff, and the latter, on the same day and as a part of the same transaction, executed the contract of conditional sale (Exhibit B) of the same goods to Tovorovsky, Tovorovsky at all times retaining possession until the time of the alleged surrender of the property to the plaintiff [511] in July. To construe the Act of 1895 as rendering a contract of conditional sale made under these circumstances, valid as against creditors of the vendee who had attached before any delivery of the g’oods to the plaintiff, would be to cause greater evils to creditors and purchasers than those against which the Act was designed to furnish protection. Had the evidence in this case clearly shown that there was no delivery of the goods in question to the plaintiff before the attachment in the suit of Schneider, that would have been a sufficient ground for granting a nonsuit. As the record shows that both the plaintiff and Tovorovsky testified that the latter, before the present action was commenced, surrendered any interest he may have had in this property to the plaintiff, the nonsuit could not have been properly granted, as suggested in the brief of defendants’ counsel, upon the ground that Tovorovsky and not Cohen should have been made the party plaintiff. There was error, the nonsuit is set aside and the case is to stand for trial. In this opinion the other judges concurred.